Gallagher v. Gallagher

• Decision Date: 04 June 1919
• Docket Number: (No. 6236.)
• Citation: 214 S.W. 516
• Parties: GALLAGHER v. GALLAGHER.
• Court: Texas Court of Appeals

214 S.W. 516

GALLAGHER v. GALLAGHER.

(No. 6236.)

Court of Civil Appeals of Texas. San Antonio.

June 4, 1919.

On Motion for Rehearing, June 28, 1919.

Appeal from District Court, Bexar County; J. T. Sluder, Judge.

Action by John J. Gallagher against Helen L. Gallagher. From a judgment granting plaintiff a divorce, defendant appeals. Reversed and remanded.

Carlos Bee, J. D. Martin, and E. H. Lange, all of San Antonio, for appellant.

R. J. McMillan, of San Antonio, for appellee.

FLY, C. J.

This is an appeal from a judgment granting a divorce to appellee from his wife, the appellant. The judgment was based upon allegations of disgraceful and outrageous conduct not consistent with loyalty to her husband and regard for her marital vows, while appellee was absent in the service of his country as a soldier and officer.

Appellee is a captain in the military service of the United States, and is, and has been for a number of years, as a matter of course, subject to be ordered to any part of the world that his superior officers might deem proper or expedient. He first came, in company with his wife, to San Antonio, Tex., in 1915, remained in that place for over a year, and was then sent with General Pershing's military expedition into Mexico, and returned to San Antonio in July, 1917, where he had remained to the time of the filing of the petition in this cause, on September 23, 1918. Appellee testified that he had for over a year intended to make San Antonio his permanent home as soon as he could retire, which will be during the year 1919. Before he entered the military service the last time he was a merchant in New York City. The question arises—the only one of any importance raised in this case—Can a person in the service of the United States as a soldier become an actual bona fide inhabitant of the state and acquire a residence for six months in the county different from the original residence from which he entered the service, and, if so, does the evidence show such acquisition?

It is provided in article 4632, Revised Statutes:

"No suit for divorce from the bonds of matrimony shall be maintained in the courts of this state unless the petitioner for such divorce shall at the time of exhibiting his or her petition, be an actual bona fide inhabitant of the state for a period of twelve months, and shall have resided in the county where the suit is filed six months next preceding the filing of the suit."

The object of the statute is not only to compel an actual good faith inhabitancy of this state, but an actual residence, for six months, in the county where the suit for divorce is instituted. Michael v. Michael 34 Tex. Civ. App. 630, 79 S. W. 75; Brashear v. Brashear (Tex. Civ. App.) 99 S. W. 568; Dickinson v. Dickinson (Tex. Civ. App.) 138 S. W. 205. The part of the article of the statutes herein quoted was construed in Michael v. Michael, and it was held:

"It is evident that if the plain, ordinary signification of the word `resided' used in the statute is given to it, it would necessarily be construed to require an actual living in the county for six months immediately preceding the filing of the suit. The word `reside' in its ordinary sense carries with it the idea of permanence as well as continuity. It does not mean living in one place and claiming a home in another. It does not mean a constructive or imaginary residence in Texas, while actually living in Illinois. It was intended by the statute not only to compel an actual good faith inhabitancy of this state, but an actual residence in the county where the suit for divorce is instituted upon the part of the party seeking the divorce."

The object of the statute was to prevent the disgraceful state of affairs that prevailed in Nevada a few years since, when Reno became famous for furnishing a city of refuge for the rich and influential who desired to shake off the restraints of the marriage relation permanently, or, as was usually the case, in order to embark afresh on the matrimonial sea with new companions. Texas has desired no such unenviable distinction for the laxity of her divorce laws, but it is to be regretted that in spite of the checks upon the annulment of marriages by the laws a lax administration of those laws in many instances, if not an utter disregard of some of their provisions, have given this state an undesirable notoriety in the annals of divorces.

As stated in Tipton v. Tipton, 87 Ky. 243, 8 S. W. 440, by the Supreme Court of Kentucky, there is a broad distinction between a legal and an actual residence. A legal residence may be fixed by fact and intention, and a man may have a legal residence in one state and an actual residence in another. The statute requires an actual residence in the county, and will not be satisfied by a legal residence.

The statute, in addition to the requirement as to residence in the county, requires an actual bona fide inhabitancy of the state for a period of 12 months. Prior to 1913, the statute did not prescribe any certain period as to inhabitancy, and doubtless that would have been satisfied by a period of 6 months, as in the case of the residence in the county. The bona fides of inhabitancy would doubtless be attained if it did not appear that a person became an inhabitant of the state merely for the purpose of qualifying to obtain a divorce in the courts of Texas. There is nothing in the evidence tending to show that appellee became an inhabitant, if he was one, of Texas merely to procure a divorce. In the nature of things he could not have inhabited Texas merely for that purpose, because he was ordered here and remained here under orders of his military superiors.

The words "inhabitant," citizen," and "resident" are stated by Judge Cooley to mean substantially the same thing, and a person is an inhabitant, resident, or citizen at the place he has his domicile or home. Cooley, Cons. Lim. 600. That is, in order to be an inhabitant there must be a domicile or home acquired, and it must have the stamp of permanency upon it. In Illinois it has been held that resident and inhabitant are not synonymous; inhabitant implying a more fixed and permanent abode than resident, and importing privileges and duties to which a mere resident would not be subject. Tazewell County v. Davenport, 40 Ill. 197. In the case of Ex parte Shaw, 145 U. S. 444, 12 Sup. Ct. 935, 36 L. Ed. 768, it was held that an inhabitant is one who resides actually and permanently in a given place and has his domicile there. In other words, there must be a permanent domicile or home established, whether actually and physically, or by intention, accompanied with some act done in the execution of that intent. Individuals are permitted to testify as to intention, but the intent is more satisfactorily shown by acts than by mere words. Harrison v. Harrison, 117 Md. 607, 84 Atl. 57.

In this case it was shown that appellee had his domicile in New York when he entered the army, and while it seems from some authorities cited by appellee that a soldier can abandon his domicile of origin and select another, yet those very authorities hold that, in order to show a new domicile during the term of enlistment, it must be shown by the "clearest and most unequivocal proof. No domicile will be acquired merely from having been stationed in the line of duty at any particular place." 14 Cyc. p. 849. Again, in another authority cited, In re Grant's Estate, 83 Misc. Rep. 262, 144 N. Y. Supp. 570, it was held:

"Doubtless a military officer, as well as another, may change for himself his domicile of origin to a new domicile, called `a domicile of choice,' which then for juridical and administrative purposes takes the place of the domicile of origin."

But it is also stated, on the same subject, in Ex parte White (D. C.) 228 Fed. 90:

"A member of the army may change his domicile, provided the intention to change is clear and associated with something fixed and established as indicating such a purpose."

In the present case appellee does not declare that he had made his domicile in San Antonio, but only that for about 18 months he had the fixed intention of making his home in that city. Even if he had declared that he had 18 months ago fixed his domicile in Bexar county by his intention or determination, that is not supported or corroborated by a single fact in the record, not even by a declaration to that effect. He had made no preparation for obtaining a home, and had never stated to any one that he intended to live here. He was in Bexar county, not of his own volition, but under the inexorable commands of military authority. He had his wife with him, it is true, but soldiers' wives often follow their husbands from one post to another, and in this instance the woman had been with him in different places, and at one time went to the Philippines with him. She went to Columbus, N. M., in 1916, and appelle...